Robert MacLean v. Department of Homeland Security (DHS)

In summer 2003, Federal Air Marshal (FAM) Robert MacLean tried to blow the whistle within the Department of Homeland Security (DHS) on an attempt to remove air marshal coverage of "high-risk" flights amidst heightened warnings based on intelligence that terrorists were planning on hijacking planes and flying them into U.S. East Coast targets -- a specific violation of the Aviation & Transportation Security Act of 2001. DHS hatched this plan due to a budget shortfall; their intention was to save money on hotel costs associated with air marshals over-nighting after nonstop, long distance flights. Air Marshal coverage would have been affected until the remainder of the fiscal year -- two months. Supervisors and the DHS Office of Inspector General rebuffed MacLean's concern, so he warned the public by going to the press.

The ageny-wide broadcasted unencrypted cellular phone text message he disclosed was not marked as "Sensitive Security Information" (SSI), the often-abused UNCLASSIFIED information control label within DHS's Transportation Security Administration (TSA) intended to protect information. The text message was sent to all agency-wide Federal Air Marshals' unprotected cellular phones instead of their cellular-ready Smart-Phones/PDAs that had password protection and encryption software. SSI regulations have vague standards for its use, and is one of many so-called "sensitive but unclassified" secrecy markings. For employees dealing with traditional CLASSIFIED information -- which is typically much more sensitive that SSI -- they must be made aware of its status so as to protect it accordingly. MacLean's disclosure helped to draw public scrutiny and congressional outrage to TSA's ill-conceived plan that rapidly led to its reversal. Also, the State Department immediately suspended immigration and visa consular programs that created security loopholes in which terrorists intended to exploit in order to carry out their suicide hijacking plots.

. POGO filed an amicus brief before the the Supreme Court supporting Robert MacLean. Maclean blew the whistleblower on a cost cutting measure that would have removed air marshals from long-distance flights in 2003 when the government was aware of a looming terrorist hijacking plot. The government admitted the the plan to remove the air marshals was a "mistake", however, MacLean was fired in 2006 after the government retro-actively said that the information that he released wasn't fit for the public. September 29, 2014.

DHS Advisory, July 26, 2003 - This warning, detailing a terrorist suicide hijacking plot, triggered the unprecedented mandatory one-on-one threat briefings to all Federal Air Marshals only a couple of days before TSA devised a plan to remove air marshals from nonstop, long distance flights to save on hotel costs. The story of this warning made the front page of the Washington Post. In addition, Senator Hillary Clinton issued an aviation security press release that responds to MacLean's disclosure. Days after MacLean's disclosure, DHS finally closed several immigration and consular visa screening loopholes that hijackers could have exploited.

"Legislation Needed to Curb Secrecy Contracts," House Committee on Government Operations. House Report 100-991, September 28, 1988.During the '80s there was conflict between Congress and the Executive over nondisclosure agreements which stated that employees could be penalized for disclosing "classifiable" (rather than classified) information. The primary argument against was that a whistleblower could be retaliated against by a management decision to simply retroactive decide that they disclosed classified information--though it was not classified when the disclosure took place. Ironically, the decision to mark the information as classified would take place only after a disclosure. Furthermore, this would hold employees who disclosed to a higher standard than the person responsible for marking information that should be marked classified. Ultimately, the "classifiable" aspect of the government nondisclosure policies was dropped. However, the same situation has reared its head in the MacLean case, which revolves around a retroactive decision to label information "sensitive security information," years after it was disclosed.

According to the House report from 1988."The Administration's most recent attempt to define 'classifiable' holds employees liable for disclosers of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Sec. 1.5. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. Executive Order 12356, Sections 1.1(c), 1.(e). The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect. As Congresswoman Boxer noted at the hearings, 'I am concerned this will force would-be whistleblowers to have to ask their superiors about classification determinations. This would act to stop the whistleblower.'" (emphasis POGO's)

POGO Testifies

POGO Director of Public Policy Angela Canterbury testified in 2011 before a Senate subcommittee on the importance of extending whistleblower protections to government contractors and other recipients of federal funds.

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Founded in 1981, the Project On Government Oversight is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.